Standard Terms under the CISG and Turkish Law

The party who wishes to incorporate its own standard terms is to ensure that they are fairly communicated to the other party. Standard terms should be readable and understandable by a reasonable person and be in a language that the other party could reasonably be expected to understand.

Standard
terms are the set of terms which are not individually discussed during the
negotiation of a sales contract. Due to its aforementioned nature, it is
difficult to determine whether parties have actually incorporated the standard
terms in question into their contracts.[1]

Article
2.1.19 The Principles of International Commercial Contracts (“PICC”) (2010)
defines standard terms as “provisions
which are prepared in advance for general and repeated use by one party and
which are actually used without negotiation with the other party.”
Furthermore, the PICC, indirectly but nevertheless expressly, regulates the
issue of incorporation of standard terms into a contract by way of referring to
general rules of formation of contract.

Conversely,
the issue of incorporation of standard terms is not specifically addressed
under the United Nations Convention on Contracts for the International Sale of
Goods (“CISG”) despite the major practical importance the subject holds in
today’s speedy transactions scheme.[2] This is why in 2013 the Advisory Council had
published an Advisory Opinion No. 13[3] on the issue of incorporation of standard terms into
a sales contract under the CISG. Accordingly, it is accepted that the
provisions on the contract formation as well as rules on interpretation of the
Convention are sufficient to determine, whether or not, or to what extend
standard terms have been validly incorporated into the contract.[4]

The
first and foremost issue to consider for the party who wishes to incorporate
its own standard terms is to ensure that they are fairly communicated to the
other party.[5] In other
words, parties should have had a reasonable opportunity to take notice of the
terms. The Advisory Opinion No. 13 provides certain non-exhaustive presumptions
where it is considered that a party had a reasonable opportunity to take notice
of the standard terms which are: where the terms are attached to a document
used in connection with the formation of the contract or printed on the reverse
side of that document, where the terms are available to the parties in the
presence of each other at the time of negotiating the contract, where, in
electronic communications, the terms are made available to and retrievable
electronically by that party and are accessible to that party at the time of
negotiating the contract and where the parties have had prior agreements
subject to the same standard terms.

Additionally,
the Advisory Opinion No. 3 stipulates that a “reasonable person of the same
kind in the same circumstances” test should be applied in order to determine
the inclusion of the standard terms as well as whether or not the terms
themselves were sufficiently clear for the other party. In order to fulfill
this criterion, it is stipulated by the Opinion that the standard terms should
be readable and understandable by a reasonable person and be in a language that
the other party could reasonably be expected to understand; i.e. the language
of the negotiated part of the contract, the negotiations or the language
ordinarily used by that party.

Other
than these, the Advisory Opinion also provides that the standard terms which
are particularly surprising or unusual are not incorporated into the agreement.
Again, “reasonableness” test shall determine whether a term amounts to such
particularity; meaning it shall be asked whether or not a reasonable person of
the same kind as the relevant party could reasonably expect such a term in the
agreement. On the other hand, where there is a conflict between negotiated
terms and standard terms in the contract, the negotiated terms override the
standard terms.

Advisory
Opinion stipulates that where the meaning of a standard term provided by one
party remains unclear in spite of interpretation; then the meaning more
favorable to the other party shall prevail; thus embracing the internationally
well-known interpretation rule of contra
proferentem.

The
party who argues that its standard terms are included in the contract bears the
burden of proof that the parties actually agreed to their incorporation. This
principle is in line with the general rule; although not expressly declared in
the CISG, that party who benefits from proving a proposition is required to
prove its existence. [6]

Under
Turkish Code of Obligations Article 21, a standard term which is unfavorable to
one party is only valid provided that the latter has accepted such term upon
having been informed about the existence and context of such term by the other
party. Otherwise, such term is deemed “unwritten”. Furthermore, standard terms
must not contain provisions that are so unfavorable or burdensome for the other
party that it is contrary to the good faith principle. In addition to this,
standard terms which are alien to the contract in question or the nature of the
transaction are also deemed “unwritten”.

All
other terms except for those which are deemed “unwritten” stand valid and the
party who had propounded those standard terms, which no longer hold valid, may
not assert that it would not have concluded the said contract without those
terms being part of it.

It
should be noted that contra proferentem rule
is expressly regulated under Article 23 of the Turkish Code of Obligations.

[2]SCHLECHTRIEM, P. & BUTLER, P., UN law on
international sales the UN Convention on the International Sale of Goods,
Berlin: Springer, 2008, p. 5.

[3] CISG-AC Opinion No.
13, Inclusion of Standard Terms under the CISG, Rapporteur: Professor Sieg
Eiselen, College of Law, University of South Africa, Pretoria, South Africa.
Adopted by the CISG Advisory Council following its 17th meeting, in
Villanova, Pennsylvania, USA, on 20 January 2013.

[4] DIMATTEO, L., OSTAS,
D., "Comparative Efficiency in International Sales Law", In American University International Law Review
26 No. 2, 2011, p. 371-439.